MESSRS PRIME DAIRIES ICE CREAM LTD., LAHORE VS COMMISSIONER OF INCOME-TAX, COMPANIES ZONE
2002 P T D 430
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangirr, Munir A. Sheikh and Rana Bhagwandas, JJ
Messrs PRIME DAIRIES ICE CREAM LTD., LAHORE
versus
COMMISSIONER OF INCOME-TAX, COMPANIES ZONE
Civil Appeals Nos.1936 to 1943 of 2000, decided on 07/11/2001.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 23-9-1999 passed in I. T. As. Nos. 174 to 181 of 1997).
(a) Civil Procedure Code (V of 1908)---
----O.XLV, Rr.2, 3 & 8---Petition to High Court for declaring the case fit for appeal to Supreme Court---Essentials---Such petition must contain all the grounds on which such certificate is sought---Being an important document, which has to be ultimately treated as memo. of appeal containing grounds challenging the judgment of High Court same has to be transmitted to Supreme Court after completion of all formalities as provided in O.XLV of C.P.C.
(b) Supreme Court Rules, 1980---
----O.XII, R.2---Constitution of Pakistan (1973), Art.185(2)(d)(e)(f)-- Application of procedure---Order XII, Supreme Court Rules, 1980, applies to appeals preferred to Supreme Court under provisions of the Constitution itself and not to appeals filed under ordinary law and other statutes providing a right of appeal against judgment of High Court passed under such statute---Where such statute provides the mechanism or procedure for filing such appeal before Supreme Court, then it would have to be followed.
(c) Supreme Court Rules, 1980---
----O.XII, R.2---Civil Procedure Code (V of 1908), Ss.109 to 112 & O.XLV---Certificated appeals under ordinary law---Application of procedure before Supreme Court---Where in respect of such appeals, the procedure provided under Supreme Court Rules, 1980, is different front that provided by C.P.C., then - Supreme Court Rules would have, overriding effect qua the provisions of C.P.C.---No provision contrary to the provisions of Ss.109, to 112 & O.XLV of C.P.C. had been made in the Supreme Court Rules, 1980 in respect of such appeals---Where statute did not provide any procedure for filing such appeals, then Supreme Court could invoke the provisions of Supreme Court Rules, 1980, governing similar certificated appeals under the Constitution on ground of similarity.
(d) Income Tax Ordinance (XXXI of 1979)---
----5.137 read with 5.136---Constitution of Pakistan (19.73), Art. 185(2)(d)(e)(f)---Supreme Court Rules, 1980, O.XII, R.2---Civil Procedure Code (V of 1908), Ss. 109 to 112 & O.XLV---Direct appeal to Supreme Court against judgment of High Court passed under 5.136 of Income Tax Ordinance, 1979---Maintainability---Provisions of C.P.C., relating to appeals to Supreme Court had been made part of Income Tax Ordinance, 1979 through legislation by making reference under S.137(2) thereof---Impugned judgment by fiction of law would be deemed to be a decree of High Court passed in a regular civil matter and question of entertaining of appeal had to be resolved under such provisions of C:P.C.---High Court had passed impugned order on petition of appellants for declaring the case fit for appeal to Supreme Court---Such petition must contain the grounds on which such certificate was sought-- Such petition in view of provisions of O.XLV, C.P.C., as a whole and in particular R.8 thereof, was an important document, which had to be ultimately treated as memo. of appeal containing grounds challenging the judgment of High Court and had to be transmitted to Supreme Court after completion of other formalities as provided in such order---Such provisions of C.P.C., would hold the field and could not be said to have been overriden by provisions of Supreme Court Rules, 1980---Appeals filed by appellants were neither maintainable nor entertainable directly, which were returned to them by Supreme Court with observations that they, if so desired, might approach High Court for proceeding further according to the provisions of Ss.109 to 112 and O.XLV of C.P.C.
Abrar Hussain Naqvi, Advocate Supreme Court for Appellant.
M. Ilyas Khan, Senior Advocate Supreme Court and M. Aslam Chattha, Advocate-on-Record for Respondent.
Date of hearing: 22nd October, 2001.
JUDGMENT
MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide Civil Appeals Nos.1936 to 1943 of 2000 involving identical questions of law and facts.
2. It has been pointed out by the office that Civil Appeal No.1936
TAN
196 days whereas each of the other appeals is
3. These appeals under section. 137 of the Income Tax Ordinance, 1979 are directed against the judgment, dated 23-9-1999 of a Division Bench of the Lahore High Court whereby the appeals filed by the Commissioner, Income-tax/Wealth Tax under section 136 of the Ordinance against the order of Division Bench of Income-tax Appellate Tribunal, Lahore Bench, Lahore, dated 9-9-1997 have-been accepted.
4. Learned counsel for the appellants submitted that though in these appeals, legality of judgment, dated 23-9-1999 has been challenged but by virtue of section 137 of the Income Tax Ordinance, appeal against such a judgment lies if the High Court certifies the case to be fit for appeal as such under 01'der XII, rule 2 of the Supreme Court Rules, period of limitation is to start from the date when the High Court certifies a case to be fit one for appeal. He submitted that on the petition of the appellants made to the High Court for obtaining a certificate of fitness, an order was passed on 30-3-2000 by the said Court that it was a fit case for appeal to this Court. Application for obtaining certified copy of the judgment dated 23-9-1999 was made on 9-10-1999., The copy was prepared on 19-10-1999 and delivered to the appellants on 27-10-1999. On the next date i.e., 28-10-2000, they made petition for certificate of fitness on which an order of that effect was passed on 30-3-2000. Application for supply of certified copy of this order was made on the same date and it was delivered to the appellants on 27-4-2000, therefore, according to him, period of limitation is to start from 30-3-2000 and excluding the days spent for obtaining certified copy of the said order, -the appeals filed on 10-5-2000 were within the prescribed period of thirty days.
5. The question arises as to whether these appeals which have been filed under section 137 of the Income Tax Ordinance are governed and regulated by Order XII,, rule 2 of the Supreme Court Rules. It is manifest from Order X11 (ibid) that it is applicable to civil appeals under Article 185(2)(d), (e) and (f) of the Constitution against the judgment of the High Court and in the latter case if the High Court certifies that the case involves a substantial question of law as to interpretation of the Constitution. It is also clear from the examination of the provisions o Order XII (ibid) as a whole that it governs the appeals preferred to this Court under the provisions of the Constitution itself and not to appeals filed under the ordinary law and other Statutes, therefore, the Statute or the law providing a right of appeal against the judgment of the High Court passed under the said Statute shall have to be examined and if the same provides the mechanism or the procedure for filing such an appeal; the same will have to be followed. Section 137 of the Income Tax Ordinance is reproduced below in extenso for facility of ready reference in order to determine its scope and applicability to present appeals:---
"137. Appeal to the supreme Court.---(1) An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on `a reference made, or any question of law framed' under section 136 in any case which the High Court certifies to be a fit one for appeal to the Supreme Court.
(2) The provisions of the Code of Civil Procedure, 1908 (V of 1908), relating to the appeal to the Supreme Court shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case of appeals from decrees of a High Court.
(3) Where the judgment of the High Court is varied or reserved in appeal under this section, effect shall be given to the order of the Supreme Court in the manner provided in subsection (5) of section 136 in the case of a judgment of the High Court.
(4) The provisions of subsections (6) and (7) of section 136 shall apply in the case of an appeal to the Supreme Court made under this section as they apply to a reference made under the said section 136."
6. It is clear from subsection (2) of section 137 of the Ordinance that provisions of the Civil Procedure Code relating to appeals to the Supreme Court against the judgment and decree of the said Court so far as applicable shall apply to appeals under this section. It is also manifest from this provision of the Ordinance that provisions of the Civil Procedure Code relating to appeals to the Supreme Court against the judgment and decree of the High Court-shall be deemed to have been incorporated by way of legislation by reference to regulate the procedure as to filing of appeals, therefore, the question of entertainability of these appeals has to be resolved under the provisions of the Civil. Procedure Code treating by fiction of law that the judgment under appeal is to b deemed to be a decree of the High Court passed in .a regular civil matter. The relevant provisions in the Civil Procedure Code relating to appeals to the Supreme Court are contained in sections 109 to 112 read with Order XLV, C.P.C. According to rule 2 of Order XLV, C.P.C, in such a case, whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of, for a declaration that the case is fit for appeal to Supreme Court. Order dated 30-3-2000 of the High Court appears to have been passed on such a petition move by the appellants which must have contained the grounds on which such a certificate was sought. This petition in our opinion keeping in view th provisions of Order XLV as a whole and in particular rule 8 of the said Order is an important document for it, prima facie, appears that the same is to be ultimately treated as memo. of appeal containing the grounds for challenging the judgment of the High Court and has to be transmitted to this Court after completion of other formalities as provided in this Order, therefore, the appellants could not present these appeals directly before this Court.
7. Faced with this difficulty, learned counsel for the appellants referred to section 112, C.P.C. and argued that by virtue of the said provision of the Code, Supreme Court Rules shall override the provisions of the Civil Procedure Code, therefore, these appeals under rule 2 of Order XII could be directly filed by the appellants before this Court and can be entertained under the said provisions of the rules.
Section 112, C.P.C. reads as under:---
"112. Savings.---[(1) Nothing contained in this Code shall be deemed---
(a) to affect the powers of the Supreme Court under Article 191 of the Constitution or any other provision thereof; or
(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.
(2) Nothing herein contained applies to any matter of criminal or admiralty or vide admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts. "
Sub-clause (b) of section 112 (1) (ibid) to which reference has been made by learned counsel for the appellants in support of his abovementioned~ contention though provides that Supreme Court Rules shall have overriding effect qua the provisions of the Civil Procedure Code but the said clause would be attracted only in case it is found that the procedure provided in the Supreme Court Rules in respect of appeals under a Statute where a case is declared to be fit for appeal to this Court under the said Statute is different from the procedure provided by the Civil Procedure -Code. We have examined the Supreme Court Rules and find that no provision contrary to the provisions of the Civil Procedure Code from sections 109 to 112 and Order XLV, C.P.C. has been made in these rules for such certificated appeals under ordinary law. This being so, these provisions of the Civil Procedure Code which have been made part of the Income Tax Ordinance through legislation by reference, as observed above, would hold the field and cannot be said to have been overriden by the provisions of the Supreme Court Rules. In case the Statute itself does not provide any procedure for filing such appeals, the matter would have been different, in which case, this Court could invoke the provisions of the rules governing similar certificated appeals under the Constitution on ground of similarity but not in a case as is the present one where the Statute itself by legislation provided procedure for such an appeal.
8. For the foregoing reasons, these appeals are neither maintainable nor entertainable directly. The office is directed to return the memo. of appeals alongwith other documents after retaining copies of the same on F record of this Court to the appellants. The appellants, may if so, desire, approach the High Court for proceeding further according to the provisions of sections. 109 to 112 and Order XLV. C. P. C.
19. No order as to costs.
S.A. K./M.A.K./P-44/SC Appeals dismissed.